Citation Nr: 0001572
Decision Date: 01/19/00 Archive Date: 01/28/00
DOCKET NO. 98-01 762A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to a disability rating greater than 10 percent
for bilateral hearing loss.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Associate Counsel
INTRODUCTION
The veteran had active duty from December 1967 to November
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Milwaukee, Wisconsin.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
the equitable disposition of the veteran's appeal.
2. At present, the veteran has Level XI hearing loss in the
right ear and Level I hearing loss in the left ear.
CONCLUSION OF LAW
The criteria for a disability rating greater than 10 percent
for bilateral hearing loss have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.85,
Diagnostic Code 6100, Tables VI and VII (1999); 38 C.F.R. §
4.87, Diagnostic Code 6101, Tables VI and VII (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
When a claimant is awarded service connection for a
disability and subsequently appeals the RO's initial
assignment of a rating for that disability, the claim
continues to be well grounded as long as the rating schedule
provides for a higher rating and the claim remains open.
Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Accordingly,
the Board finds that the veteran's claim for an increased
rating is well grounded. 38 U.S.C.A. § 5107(a) (West 1991);
38 C.F.R. § 3.102 (1998). The Board is also satisfied that
all relevant facts have been properly and sufficiently
developed to address the issue at hand.
Factual Background
In a September 1997 decision, the RO awarded service
connection for bilateral hearing loss effective from August
1972, based on a finding of clear and unmistakable error in
the RO's October 1972 decision.
The October 1972 VA audiology examination revealed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-----
10
5
70
50
LEFT
-----
10
10
60
75
Average pure tone decibel loss was 34 on the right and 39 on
the left. Speech audiometry revealed speech recognition
ability of 94 percent in the right ear and 90 percent in the
left ear. No physical abnormalities of the ear were shown on
examination.
The veteran submitted a report of a private audiology
examination from October 1984. At that time, pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-----
85
85
85
80
LEFT
-----
15
5
70
85
The average pure tone decibel loss was 84 in the right ear
and 44 in the left ear. Speech audiometry revealed no speech
recognition ability in the right ear and 96 percent speech
recognition ability in the left ear.
The veteran underwent a VA audiological examination in
November 1997. Pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-----
105+
105+
105+
105+
LEFT
----
15
20
70
80
Average pure tone decibel loss was 105+ decibels in the right
ear and 46 decibels in the left ear. Speech audiometry
revealed no speech recognition ability in the right ear and
96 percent speech recognition ability in the left ear.
Physical examination of the ears was negative. Testing
revealed an abnormal right tympanogram and absent stapedial
reflex on the right.
The veteran was afforded another VA audiological examination
in February 1999. At that time, pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-----
100
100
105+
105+
LEFT
-----
15
30
65
85
The average pure tone loss was over 100 decibels on the right
and 49 decibels on the left. Speech audiometry revealed no
speech recognition ability in the right ear and 98 percent
speech recognition ability in the left ear.
In May 1999, the veteran underwent a VA outpatient audiology
examination. Pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-----
-----
-----
-----
-----
LEFT
-----
25
30
70
85
There was no pure tone recognition in the right ear. Average
pure tone decibel loss in the left ear was 53. Speech
audiometry revealed no speech recognition ability in the
right ear and 96 percent speech recognition ability in the
left ear. Physical examination of the ears was negative.
The veteran testified at a hearing before a member of the
Board in October 1999. His right ear was totally deaf. He
also had hearing loss in the left ear. He was currently
using a hearing aid, which helped.
Analysis
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
If two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7. The Board observes that, in a claim of disagreement
with the initial rating assigned following a grant of service
connection, as is the situation in this case, separate
ratings can be assigned for separate periods of time, based
on the facts found. Fenderson v. West, 12 Vet. App. 119, 126
(1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a
claim for an original or an increased rating, it is presumed
that the veteran seeks the maximum benefit allowed by law and
regulation, and it follows that such a claim remains in
controversy when less than the maximum available benefit is
awarded).
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
The veteran's bilateral hearing loss is evaluated as 10
percent disabling. During the pendency of the veteran's
appeal, VA promulgated new regulations amending the rating
criteria for hearing impairment, effective June 10, 1999.
See 64 Fed. Reg. 25,202 - 25,210 (codified at 38 C.F.R. pt.
4). Generally, where the law or regulation changes after a
claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the veteran will apply. Karnas
v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when
amended regulations expressly state an effective date and do
not include any provision for retroactive applicability,
application of the revised regulations prior to the stated
effective date is precluded, notwithstanding Karnas. Rhodan
v. West, 12 Vet. App. 55, 57 (1998).
The Board notes that the RO considered the amendments to the
regulations in its August 1999 supplemental statement of the
case, such that the veteran is not prejudiced by the Board's
current consideration of his claim. Bernard v. Brown, 4 Vet.
App. 384, 392-94 (1993). In any event, after careful review
of the regulations in question, the Board finds that the
changes are not significant to this particular veteran's
claim and that the amended regulation is not more favorable
to the veteran than the previous version.
Impaired hearing will be considered a disability only after
threshold requirements are met. See 38 C.F.R. § 3.385. Once
disability is established, levels of hearing loss are
determined by considering the average pure tone decibel loss
and speech discrimination percentage scores. 38 C.F.R.
§ 4.87, Table VI (1998); 38 C.F.R. § 4.85(b), Table VI
(1999). Disability ratings are assigned by combining a level
of hearing loss in each ear. 38 C.F.R. § 4.87, Table VII
(1998); 38 C.F.R. § 4.85(e), Table VII (1999). See
Lendenmann v. Principi, 3 Vet. App. 345 (1992) (assignment of
disability ratings for hearing impairment are derived by a
mechanical application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered).
In this case, the RO assigned a noncompensable (0 percent)
disability rating from the effective date of the award in
1972 and assigned a 10 percent disability rating from the
date of the October 1984 private audiology examination. The
veteran's remaining disagreement with his claim surrounds the
current evaluation, which he contends should be more than 10
percent.
In this case applying the results of both VA examinations and
the VA outpatient evaluation to Table VI yields a Roman
numeral value of XI for the right ear and I for the left ear.
Applying these values to Table VII, the Board finds that the
veteran's hearing loss is evaluated as 10 percent disabling.
Accordingly, the Board finds that the preponderance of the
evidence is against entitlement to a disability rating great
than 10 percent for bilateral hearing loss. 38 U.S.C.A.
§§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.85, Code
6100 (1999); 38 C.F.R. § 4.87, Code 6101 (1998).
The Board acknowledges that the veteran has total hearing
loss in the right ear and that the veteran believes he should
have a greater disability rating based on that loss.
Although the Board is sympathetic to the veteran's claim and
the particular circumstances therein, action by the Board and
VA is bound by the applicable law and regulations as written.
38 U.S.C.A. § 7104(c). Application of the evidence in this
case to the pertinent regulations yields no more than a 10
percent disability rating for bilateral hearing loss.
ORDER
Entitlement to a disability rating greater than 10 percent
for bilateral hearing loss is denied.
RENÉE M. PELLETIER
Member, Board of Veterans' Appeals